Posted
by
kdawson
on Monday March 01, 2010 @07:01PM
from the who-you-callin'-a-qui-tam dept.

bizwriter writes "The latest legal bugaboo facing manufacturers is the false patent marking suit. Using what has been until recently an obscure type of legal action, individuals and enterprising law firms have targeted large manufacturers with lawsuits that can easily run million of dollars — in a case involving a drink cup manufacturer, over $10 trillion — for incorrectly including patent numbers on products. Some companies named in such suits are 3M, Cisco, Pfizer, Monster Cable, and Merck. Even expired patent numbers can be actionable." Sounds like a perfect opportunity for some enlightened appeals court to inject some sense into the debate. What do you think the chances are? Note: if ever there were a page that cries out for the Readability bookmarklet, this is it.

How about this is completely unrelated and if I really care about the list of patents on a product I'm probably treating them as a warning, not an ad, and I'd rather they be too-inclusive than super-exclusive?

Sounds like a perfect opportunity for some enlightened appeals court to inject some sense into the debate. What do you think the chances are?

Never going to happen.

In the eyes of the Federal Gov, upholding patents and IPs are so important, it would be considered National Security to protect them. Seriously, what the hell does America have that's worth selling? Nothing except services and IP. We hardly manufacture anything anymore.

This is simple a case of false advertising. The companies that are being sued labelled their products wrong. "Oh I forgot". Yeah, likely story. I see they did NOT forget to put the patent claim on the product. How odd is that eh?

If it is going to cost the likes of Monster Cable a few millions or even bankrupt them to get false patent claims of products, then I am all for it, and the people bringing these cases making a fortune? Well sometimes the person who cleans up the system gets paid.

Say that someone found a way to make serious money of prosecuting companies sending fake copyright take down notices, would we be against that as well? No.

Here [patentlyo.com] is a link to the court's decision. It is not a judgment against Solo, but a denial of their request to dismiss the case.

The judge argues the problem of incorrect markings here:

Congress has given to the inventor opportunity to secure the material rewards for his invention for a limited time [...] Patent markings are an essential component of this system. The "Patent No. XXX" imprint is, in effect, a "no trespassing" sign.

The plaintiff, i.e. the "troll", has not yet made his case. In order to prevail he has to prove that Solo used the incorrect markings "for the purpose of deceiving the public." That remains to be determined.

But therein, it is not clear to me what's really going on here with Solo (for example). It seems that laziness about cleaning up one's patent markings has a distinct reward, i.e. to scare off copy-cat competitors (which is exactly the kind of subsequent activity that the publicly filed/expired patent is intended to encourage). I'm not so sure that these are just mistakes, and in fact, I find it unlikely that there isn't some willfulness here. The corporate counsels that insist on taking advantage of adding the patent markings don't consider the correctness of removing them once they are no longer valid???

It may take a crack of the whip to clean up the rampant "laziness" that leaves these wrong and discouraging markings in use.

Consumers are responsible for knowing the law, and we don't need any more legislation designed to protect people from themselves. The networks can say anything they please; it doesn't make it true, and it doesn't mean it stands a chance in hell of being the basis for a successful lawsuit.

Perhaps you missed the part where the NFL basically says "Do what we say or we'll file baseless lawsuits that will bankrupt you in legal costs even if you win." You shouldn't be able to threaten people with legal action unless you actually have a reasonable claim. I guess you've never had to deal with the stress of a lawyer bombarding you with legal claims, hoping one of them will stick. Or, do you propose that everyone must get a law degree to be able to do anything in life?

Say that someone found a way to make serious money of prosecuting companies sending fake copyright take down notices, would we be against that as well? No.

It's easy to see where the harm is in such a case. Somebody has actually done something, most likely created something*, and they're being trampled by a company for no reason other than the company has more money than them and can likely steamroll them, right or wrong.

Who is hurt by fake patent listings? "Oh, I was going to make a Tickle Me Elmo knock-off doll but the box here says it's patented, I'd better not!" It's false advertising in the literal sense of the term; it's part of their advertising, and it's false. But false advertising is a consumer protection law, and I fail to see how consumers are being protected.

If you're arguing that it is wrong of them to do, and abusive of the system, then you're right. Both of those should be handled by government action: fines, loss of marks and other protection, etc. Instead we have some sort of legalized vigilantism where people who shouldn't have any legal standing to sue at all are granted permission to do it so the government doesn't have to do its own job.

I don't mind sometimes cheering the slime to get rid of the scum (depending on circumstances of course!) but if the two sides are "lawyers looking to get rich over violations with no harm to anybody much less themselves" and "companies claiming they have patents they don't," then frankly I see the lawyers as the scum.

* If all they did is, say, upload an mp3 then I fail to see why anybody who doesn't own rights to it would actually send notices. It's not their problem and they gain nothing.

Loser pays actually helps a lot more than you're describing. It makes it enormously more feasible for attorneys to take cases on contingency, especially obviously ridiculous ones.

EVERY attorney I've ever spoken with (and that is a lot of them) has told me that if a case goes to court there is at minimum a 10% chance they will lose the case no matter how iron clad their argument. Even being correct is no guarantee that you will win once the case gets to a judge/jury. If we have a loser pays system that is a pretty substantial risk for a party who can't afford to lose.

Don't get me wrong, I think there should be some form of loser pays in the system - we just have to be careful how it is implemented.

How about reforming the law to do away with the moronic idea of awarding "punitive damages", or whatever it is called in cases like these, to claimants?

So how do you propose to make large companies pay attention to their bad behavior? The medical bills are pocket change and a company doesn't have a sense of ethics. They exist to make money. That is the ONLY reason most of them exist. If a company misbehaves one way to punish the company is to do so financially - hence, punitive damages.

If you have a better idea I'm sure lots of people would be interested but I'm pretty sure you don't.

In some countries, like the one I live in, payments to claimants are pretty much limited to actual damages and legal fees, maybe with a small bit added on top for things like mental anguish or redress.

Which is an approach that potentially rewards large companies for bad behavior. If the benefit of the bad behavior outweighs the financial cost, the company is going to behave badly. People have died because of this sort of cost/benefit analysis.

And if another company has been naughty and put incorrect markings on their products, they should received reasonable punishment.

Agreed but you don't seem to have a very clear idea of what reasonable might be. A $50,000 fine to McDonalds is not a punishment.

Some of these amounts sound excessive, and in any case, they should be treated as fines and go to the state, not to some random claimant.

Why is the state any more deserving? Besides, the state will take much of it in taxes anyway.